H.B. 259

1

ADOPTION AMENDMENTS
2 2005 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Ann W. Hardy
5
6 LONG TITLE
7 General Description:
8 This bill makes changes to the procedures, rights, and requirements of the chapter of the
9 Judicial Code relating to adoption.
10 Highlighted Provisions:
11 This bill:
12 . defines terms;
13 . describes the rights and duties of a parent and a guardian with respect to a minor for
14 whom a guardian is appointed;
15 . provides that the payment of certain adoption related expenses does not constitute
16 the crime of sale of a child;
17 . provides that before a parent consents to the adoption of the parent's child or
18 relinquishes the parent's child to a child-placing agency, the parent has the right to
19 participate in counseling at the expense of the adoptive parents or the child-placing
20 agency;
21 . establishes procedures and requirements for preplacement and postplacement
22 adoptive evaluations;
23 . describes who may conduct preplacement and postplacement adoptive evaluations;
24 . describes the persons who are entitled to notice of adoption proceedings;
25 . describes the persons from whom consent for adoption or relinquishment of a child
26 for adoption is required;
27 . provides that a person's relinquishment of a child for adoption may not be

28 considered as evidence that custody of the child should not be awarded to the person;
29 . provides that a minor has the power to relinquish the minor's child for adoption; and
30 . makes technical changes.
31 Monies Appropriated in this Bill:
32 None
33 Other Special Clauses:
34 None
35 Utah Code Sections Affected:
36 AMENDS:
37 75-5-209, as last amended by Chapter 30, Laws of Utah 1992
38 76-7-203, as last amended by Chapter 245, Laws of Utah 1990
39 78-30-1.1, as last amended by Chapter 20, Laws of Utah 1995
40 78-30-3.5, as last amended by Chapters 121 and 122, Laws of Utah 2004
41 78-30-4.12, as enacted by Chapter 168, Laws of Utah 1995
42 78-30-4.13, as last amended by Chapter 122, Laws of Utah 2004
43 78-30-4.14, as last amended by Chapter 122, Laws of Utah 2004
44 78-30-4.16, as last amended by Chapter 122, Laws of Utah 2004
45 78-30-4.21, as renumbered and amended by Chapter 168, Laws of Utah 1995
46 ENACTS:
47 78-30-3.3, Utah Code Annotated 1953
48 REPEALS:
49 78-30-4.11, as enacted by Chapter 168, Laws of Utah 1995
50
51 Be it enacted by the Legislature of the state of Utah:
52 Section 1. Section 75-5-209 is amended to read:
53 75-5-209. Powers and duties of guardian of minor -- Residual parental rights and
54 duties -- Adoption of a ward.
55 [A] (1) For purposes of this section, "residual parental rights and duties" is as defined
56 in Section 78-3a-103 .
57 (2) Except as provided in Subsection (4)(a), a guardian of a minor has the powers and
58 responsibilities of a parent who has not been deprived of custody of [his] the parent's

59 unemancipated minor [and unemancipated child, except that a guardian is not legally obligated
60 to provide from his own funds for the ward and is not liable to third persons by reason of the
61 parental relationship for acts of the ward. In particular, and without qualifying the foregoing, a
62 guardian has the following powers and duties:], including the powers and responsibilities
63 described in Subsection (3).
64 [(1) He] (3) A guardian of a minor:
65 (a) must take reasonable care of [his ward's] the personal effects [and] of the guardian's
66 ward;
67 (b) must commence protective proceedings if necessary to protect other property of the
68 guardian's ward[.];
69 [(2) He] (c) subject to Subsection (4)(b), may receive money payable for the support of
70 the ward to the ward's parent, guardian, or custodian under the terms of [any] a:
71 (i) statutory benefit or insurance system[, or any];
72 (ii) private contract[,];
73 (iii) devise[,];
74 (iv) trust[,];
75 (v) conservatorship; or
76 (vi) custodianship[. He also];
77 (d) subject to Subsection (4)(b), may receive money or property of the ward paid or
78 delivered by virtue of Section 75-5-102 [. Any sums so received shall be applied to the ward's
79 current needs for support, care and education. He];
80 (e) except as provided in Subsection (4)(c), must exercise due care to conserve any
81 excess money or property described in Subsection (3)(d) for the ward's future needs [unless a
82 conservator has been appointed for the estate of the ward, in which case the excess shall be
83 paid over at least annually to the conservator. Sums so received by the guardian are not to be
84 used for compensation for his services except as approved by order of court or as determined
85 by a duly appointed conservator other than the guardian. Unless];
86 (f) unless otherwise provided by statute, [a guardian] may institute proceedings to
87 compel the performance by any person of a duty to:
88 (i) support the ward; or [to]
89 (ii) pay sums for the welfare of the ward[.];

90 [(3) The guardian]
91 (g) is empowered to:
92 (i) facilitate the ward's education, social, or other activities; and [to]
93 (ii) subject to Subsection (4)(d), authorize medical or other professional care,
94 treatment, or advice[. A guardian is not liable by reason of this consent for injury to the ward
95 resulting from the negligence or acts of third persons unless it would have been illegal for a
96 parent to have consented. A guardian];
97 (h) may consent to the:
98 (i) marriage of the guardian's ward, if specifically authorized by a court to give this
99 consent; or
100 (ii) adoption of [his] the guardian's ward[.] if the:
101 (A) guardian of the ward is specifically authorized by a court to give this consent; and
102 (B) parental rights of the ward's parents have been terminated; and
103 [(4) A guardian] (i) must report the condition of [his ward] the minor and of [the
104 ward's] the minor's estate [which] that has been subject to [his] the guardian's possession or
105 control[,]:
106 (i) as ordered by court on petition of any person interested in the minor's welfare; or
107 (ii) as required by court rule.
108 (4) (a) Notwithstanding Subsection (2), a guardian of a minor is not:
109 (i) legally obligated to provide from the guardian's own funds for the ward; and
110 (ii) liable to third persons by reason of the guardian's relationship for acts of the ward.
111 (b) Sums received under Subsection (3)(c) or (d):
112 (i) may not be used for compensation for the services of a guardian, except as:
113 (A) approved by court order; or
114 (B) determined by a duly appointed conservator other than the guardian; and
115 (ii) shall be applied to the ward's current needs for support, care, and education.
116 (c) Notwithstanding Subsection (3)(e), if a conservator is appointed for the estate of the
117 ward, the excess shall be paid over at least annually to the conservator.
118 (d) A guardian of a minor is not, by reason of giving the authorization described in
119 Subsection (3)(g)(ii), liable for injury to the minor resulting from the negligence or acts of third
120 persons, unless it would have been illegal for a parent to have given the authorization.

121 (5) A parent of a minor for whom a guardian is appointed retains residual parental
122 rights and duties.
123 (6) If a parent of a minor for whom a guardian is appointed consents to the adoption of
124 the minor, the guardian is entitled to:
125 (a) receive notice of the adoption proceeding pursuant to Section 78-30-4.13 ;
126 (b) intervene in the adoption; and
127 (c) present evidence to the court relevant to the best interest of the child pursuant to
128 Subsection 78-30-4.13 (11).
129 (7) If a minor for whom a guardian is appointed is adopted subsequent to the
130 appointment, the guardianship shall terminate when the adoption is finalized.
131 Section 2. Section 76-7-203 is amended to read:
132 76-7-203. Sale of child -- Felony -- Payment of adoption related expenses.
133 [Any person]
134 (1) For purposes of this section:
135 (a) "adoption related expenses" means expenses that:
136 (i) are reasonably related to the adoption of a child;
137 (ii) are incurred for a reasonable amount; and
138 (iii) may include expenses:
139 (A) of the mother or father of the child being adopted, including:
140 (I) legal expenses;
141 (II) maternity expenses;
142 (III) medical expenses;
143 (IV) hospital expenses;
144 (V) counseling expenses;
145 (VI) temporary living expenses during the pregnancy or confinement of the mother; or
146 (VII) expenses for travel between the mother's or father's home and the location where
147 the child will be born or placed for adoption; or
148 (B) of a directly affected person for:
149 (I) travel between the directly affected person's home and the location where the child
150 will be born or placed for adoption; or
151 (II) temporary living expenses during the pregnancy or confinement of the mother;

152 (b) "directly affected person" means a person who is:
153 (i) a parent or guardian of a minor when the minor is the mother or father of the child
154 being adopted; or
155 (ii) a dependant of:
156 (A) the mother or father of the child being adopted; or
157 (B) the parent or guardian described in Subsection (1)(b)(i).
158 (2) Except as provided in Subsection (3), a person is guilty of a third degree felony if
159 the person, while having custody, care, control, or possession of [any] a child, [who] sells, or
160 disposes of, or attempts to sell or dispose of, [any] the child for and in consideration of the
161 payment of money or other thing of value [is guilty of a felony of the third degree. However,
162 this section does not prohibit any person, agency, or corporation from paying the actual and
163 reasonable legal expenses, maternity expenses, related medical or hospital, and necessary living
164 expenses of the mother preceding and during confinement].
165 (3) A person does not violate this section by paying adoption related expenses:
166 (a) as an act of charity[, so long as]; and
167 (b) if the payment is not made for the purpose of inducing the mother, parent, or legal
168 guardian of a child to:
169 (i) place the child for adoption[,];
170 (ii) consent to an adoption[,]; or
171 (iii) cooperate in the completion of an adoption.
172 Section 3. Section 78-30-1.1 is amended to read:
173 78-30-1.1. Definitions.
174 As used in this chapter [the term "licensed child placing]:
175 (1) "Adoption service provider" means a:
176 (a) child-placing agency; or
177 (b) licensed counselor who has at least one year of experience providing professional
178 social work services to:
179 (i) adoptive parents; or
180 (ii) birth parents.
181 (2) "Child-placing agency" means an agency licensed to place children for adoption
182 under Title 62A, Chapter 4a, Part 6, Child and Family Services.

183 (3) "Licensed counselor" means a person who is licensed by the state, or another state,
184 district, or territory of the United States as a:
185 (a) certified social worker;
186 (b) clinical social worker;
187 (c) psychologist;
188 (d) marriage and family therapist;
189 (e) professional counselor; or
190 (f) an equivalent licensed professional of another state, district, or territory of the
191 United States.
192 (4) "Parent," for purposes of Section 78-30-3.3 , means any person described in
193 Subsections 78-30-4.14 (1)(b) through (f) from whom consent for adoption or relinquishment
194 for adoption is required under Section 78-30-4.14 .
195 (5) "Unmarried biological father" means a person who:
196 (a) is the biological father of a child; and
197 (b) was not married to the biological mother of the child described in Subsection (5)(a)
198 at the time of the child's:
199 (i) conception; or
200 (ii) birth.
201 Section 4. Section 78-30-3.3 is enacted to read:
202 78-30-3.3. Counseling for parents.
203 (1) Subject to Subsection (2)(a), before relinquishing a child to a child-placing agency,
204 or consenting to the adoption of a child, a parent of the child has the right to participate in
205 counseling:
206 (a) by a licensed counselor or an adoption service provider selected by the parent
207 participating in the counseling;
208 (b) for up to three sessions of at least 50 minutes per session; and
209 (c) subject to Subsection (2)(b), at the expense of the:
210 (i) child-placing agency; or
211 (ii) prospective adoptive parents.
212 (2) (a) Notwithstanding Subsection (1), a parent who has the right to participate in the
213 counseling described in this section may waive that right.

214 (b) Notwithstanding Subsection (1)(c), the total amount required to be paid by a
215 child-placing agency or the prospective adoptive parents for the counseling described in
216 Subsection (1) may not exceed $250.
217 (3) Before a parent relinquishes a child to a child-placing agency, or consents to the
218 adoption of a child, the parent shall be informed of the right described in Subsection (1) by the:
219 (a) child-placing agency;
220 (b) prospective adoptive parents; or
221 (c) representative of a person described in Subsection (3)(a) or (b).
222 (4) (a) Subject to Subsections (4)(b) and (c), before the day on which a final decree of
223 adoption is entered, a statement shall be filed with the court that:
224 (i) is signed by each parent who:
225 (A) relinquishes the parent's parental rights; or
226 (B) consents to the adoption; and
227 (ii) states that, before the parent took the action described in Subsection (4)(a)(i)(A) or
228 (B), the parent was advised of the parent's right to participate in the counseling described in this
229 section at the expense of the:
230 (A) child-placing agency; or
231 (B) prospective adoptive parents.
232 (b) The statement described in Subsection (4)(a) may be included in the document that:
233 (i) relinquishes the parent's parental rights; or
234 (ii) consents to the adoption.
235 (c) Failure by a person to give the notice described in Subsection (3), or pay for the
236 counseling described in this section:
237 (i) shall not constitute grounds for invalidating a:
238 (A) relinquishment of parental rights; or
239 (B) consent to adoption; and
240 (ii) shall give rise to a cause of action for the recovery of damages suffered, if any, by
241 the parent or guardian who took the action described in Subsection (4)(c)(i)(A) or (B) against
242 the person required to:
243 (A) give the notice described in Subsection (3); or
244 (B) pay for the counseling described in this section.

245 Section 5. Section 78-30-3.5 is amended to read:
246 78-30-3.5. Preplacement and postplacement adoptive evaluations -- Exceptions.
247 (1) (a) Except as [otherwise provided in this section] provided in Subsection (1)(b),
248 (3)(a), (3)(b), or (8), a child may not be placed in an adoptive home until an adoption service
249 provider or a person authorized to conduct a preplacement adoption evaluation by the state,
250 district, or territory of the United States where a prospective adoptive parent resides:
251 (i) conducts a preplacement adoptive evaluation[, assessing the prospective adoptive
252 parent and the prospective adoptive home, has been conducted] in accordance with the
253 requirements of this section[.]; and
254 (ii) determines, based on the evaluation described in Subsection (1)(a)(i), that the
255 prospective adoptive parents and the prospective adoptive home are a suitable placement for
256 the child.
257 (b) [The] Notwithstanding Subsection (1)(a), the court may, at any time, authorize
258 temporary placement of a child in a potential adoptive home pending completion of a
259 preplacement adoptive evaluation described in this section.
260 [(c) Subsection (1)(a) does not apply if a birth parent has legal custody of the child to
261 be adopted and the prospective adoptive parent is related to that child as a step-parent, sibling
262 by half or whole blood or by adoption, grandparent, aunt, uncle, or first cousin, unless the
263 evaluation is otherwise requested by the court. The]
264 (c) If a preplacement adoptive evaluation is not required under this section, a
265 prospective adoptive parent [described in this Subsection (1)(c) shall, however,] shall:
266 (i) obtain the information described in [Subsections (2)(a) and (b), and file that
267 documentation] Subsection (2); and
268 (ii) file documents containing the information described in Subsection (1)(c)(i) with the
269 court prior to finalization of the adoption.
270 (d) [The required] A preplacement adoptive evaluation required by this Subsection (1)
271 must be completed or updated:
272 (i) within the 12-month period immediately preceding the placement of a child with the
273 prospective adoptive parent[. If the prospective adoptive parent has previously received
274 custody of a child for the purpose of adoption, the preplacement adoptive evaluation must be
275 completed or updated within the 12-month period immediately preceding the placement of a

276 child with the prospective adoptive parent and after the placement of the previous child]; and
277 (ii) after the day on which a child was previously placed with the prospective adoptive
278 parent for the purpose of adoption.
279 (2) [The] A preplacement adoptive evaluation shall include:
280 (a) criminal history record information regarding each prospective adoptive parent and
281 any other adult living in the prospective home, prepared no earlier than 18 months immediately
282 preceding placement of the child by:
283 (i) the Criminal Investigations and Technical Services Division of the Department of
284 Public Safety, in accordance with Section 53-10-108 [, no earlier than 18 months immediately
285 preceding placement of the child;]; or
286 (ii) an agency of the state, district, or territory of the United States where a prospective
287 adoptive parent resides that has authority to conduct a criminal history check equivalent to the
288 criminal history check described in Subsection (2)(a)(i);
289 (b) a report prepared by the Department of Human Services or the equivalent agency in
290 the state, district, or territory of the United States where a prospective adoptive parent resides:
291 (i) containing all information regarding reports and investigation of child abuse,
292 neglect, and dependency, with respect to each:
293 (A) prospective adoptive parent; and [any other]
294 (B) adult living in the prospective home[,]; and
295 (ii) obtained:
296 (A) no earlier than 18 months immediately preceding placement of the child[,]; and
297 (B) pursuant to waivers executed by [those parties;] the persons described in
298 Subsections (2)(b)(i)(A) and (B).
299 [(c) an evaluation conducted by an expert in family relations approved by the court or a
300 certified social worker, clinical social worker, marriage and family therapist, psychologist,
301 professional counselor, or other court-determined expert in family relations, who is licensed to
302 practice under the laws of this state or under the laws of the state where the prospective
303 adoptive parent or other person living in the prospective adoptive home resides. The
304 evaluation shall be in a form approved by the Department of Human Services. Neither the
305 Department of Human Services nor any of its divisions may proscribe who qualifies as an
306 expert in family relations or who may conduct evaluations pursuant to this Subsection (2); and]

307 [(d)] (3) (a) Notwithstanding Subsection (1)(a), if the child to be adopted is [a child
308 who is] in the custody of any public child welfare agency, and is a child with special needs as
309 defined in Subsection 62A-4a-902 (2), the preplacement adoptive evaluation must be conducted
310 by:
311 (i) the Department of Human Services [or];
312 (ii) a [licensed] child-placing agency [which] that has [entered into a contract]
313 contracted with the department to conduct [the] preplacement adoptive evaluations for children
314 with special needs[. Any fee assessed by the evaluating agency is the responsibility of the
315 adopting parent or parents.]; or
316 (iii) if a prospective adoptive parent resides outside of the state, the public child
317 welfare agency in the state, district, or territory of the United States where the prospective
318 adoptive parent resides.
319 [(3) The person or agency conducting the]
320 (b) Notwithstanding Subsection (1)(a), the court may appoint any person that the court
321 determines is qualified to conduct a preplacement adoptive evaluation if:
322 (i) the child to be adopted is not a child described in Subsection (3)(a); and
323 (ii) an adoptive parent establishes that an adoption service provider is not reasonably
324 available to conduct a preplacement adoptive evaluation.
325 (c) The adoptive parent or parents shall be responsible to pay any fee assessed for a
326 preplacement adoptive evaluation conducted pursuant to this section.
327 (d) A person that conducts a preplacement adoptive evaluation under this section shall,
328 in connection with the evaluation, provide the prospective adoptive parent or parents with
329 literature that:
330 (i) is approved by the Division of Child and Family Services relating to adoption[,];
331 and [including]
332 (ii) includes information relating to:
333 (A) the adoption process[,];
334 (B) developmental issues that may require early intervention[,]; and
335 (C) community resources that are available to the adoptive parent or parents.
336 (4) A copy of the preplacement adoptive evaluation shall be filed with the court.
337 (5) (a) [Except as provided in Subsections (5)(b) and (c)] Subject to Subsections (5)(b)

338 and (8), a postplacement adoption evaluation shall:
339 (i) except as provided in Subsection (9), be conducted [and] by:
340 (A) an adoption service provider; or
341 (B) a person authorized to conduct a postplacement adoption evaluation by the state,
342 district, or territory of the United States where a prospective adoptive parent resides;
343 (ii) be submitted to the court prior to the final hearing in an adoption proceeding[. The
344 postplacement evaluation shall]; and
345 (iii) include:
346 [(i)] (A) verification of the allegations of fact contained in the petition for adoption;
347 [(ii)] (B) an evaluation of the progress of the child's placement in the adoptive home;
348 and
349 [(iii)] (C) a recommendation regarding whether the adoption is in the best interest of
350 the child.
351 [(b) The exemptions from and requirements for evaluations, described in Subsections
352 (1)(c), (2)(c), and (3), also apply to postplacement adoptive evaluations.]
353 [(c) Upon]
354 (b) Notwithstanding Subsection (5)(a), upon the request of the petitioner, the court may
355 waive the postplacement adoptive evaluation, unless [it]:
356 (i) the court determines that it is in the best interest of the child to require the
357 postplacement adoptive evaluation[. Except where]; or
358 (ii) the child to be adopted [and the prospective parent are related as set forth in
359 Subsection (1)(c), the court may waive the postplacement adoptive evaluation for a child]:
360 (A) is not related to the prospective parent in a manner described in Subsection
361 (8)(a)(ii); and
362 (B) is a child with special needs as defined in Section 62A-4a-902 .
363 (6) (a) [If the person or agency conducting] Subject to Subsection (6)(b), if the person
364 who conducts the evaluation disapproves the adoptive placement, either in the preplacement or
365 postplacement adoptive evaluation, the court may dismiss the petition. [However,]
366 (b) Notwithstanding Subsection (6)(a), upon request of a prospective adoptive parent,
367 the court shall:
368 (i) order that an additional preplacement or postplacement adoptive evaluation be

369 conducted[,]; and
370 (ii) hold a hearing on the suitability of the adoption, including testimony of interested
371 parties.
372 (7) Prior to finalization of a petition for adoption the court shall review and consider
373 the information and recommendations contained in the preplacement and postplacement
374 adoptive studies required by this section.
375 (8) (a) Except as provided in Subsection (8)(b), Subsections (1)(a) and (5)(a) do not
376 apply if:
377 (i) a birth parent has legal custody of the child to be adopted; and
378 (ii) the prospective adoptive parent is related to the child as a:
379 (A) step-parent;
380 (B) sibling by:
381 (I) half blood;
382 (II) whole blood; or
383 (III) adoption;
384 (C) grandparent;
385 (D) aunt;
386 (E) uncle; or
387 (F) first cousin.
388 (b) Notwithstanding Subsection (8)(a):
389 (i) Subsection (1)(a) applies if the court requests a preplacement adoptive evaluation;
390 and
391 (ii) Subsection (5)(a) applies if the court requests a postplacement adoptive evaluation.
392 (9) Notwithstanding Subsection (5)(a)(i), the court may appoint any person that the
393 court determines is qualified to conduct a postplacement adoptive evaluation if an adoptive
394 parent establishes that an adoption service provider is not reasonably available to conduct a
395 postplacement adoptive evaluation.
396 Section 6. Section 78-30-4.12 is amended to read:
397 78-30-4.12. Rights and responsibilities of parties in adoption proceedings.
398 (1) The Legislature finds that the rights and interests of all parties affected by an
399 adoption proceeding must be considered and balanced in determining what constitutional

400 protections and processes are necessary and appropriate.
401 (2) The Legislature finds that:
402 (a) the state has a compelling interest in providing stable and permanent homes for
403 adoptive children in a prompt manner, in preventing the disruption of adoptive placements, and
404 in holding parents accountable for meeting the needs of children;
405 (b) an unmarried mother, faced with the responsibility of making crucial decisions
406 about the future of a newborn child, is entitled to privacy, and has the right to make timely and
407 appropriate decisions regarding her future and the future of the child, and is entitled to
408 assurance regarding the permanence of an adoptive placement;
409 (c) adoptive children have a right to permanence and stability in adoptive placements;
410 (d) adoptive parents have a constitutionally protected liberty and privacy interest in
411 retaining custody of an adopted child; and
412 (e) an unmarried biological father has an inchoate interest that acquires constitutional
413 protection only when he demonstrates a timely and full commitment to the responsibilities of
414 parenthood, both during pregnancy and upon the child's birth. The state has a compelling
415 interest in requiring unmarried biological fathers to demonstrate that commitment by providing
416 appropriate medical care and financial support and by establishing legal paternity, in
417 accordance with the requirements of this chapter.
418 (3) (a) In enacting [Sections 78-30-4.11 ] Subsection 78-30-1.1 (5) and Sections
419 78-30-4.12 through 78-30-4.21 , the Legislature prescribes the conditions for determining
420 whether an unmarried biological father's action is sufficiently prompt and substantial to require
421 constitutional protection.
422 (b) If an unmarried biological father fails to grasp the opportunities to establish a
423 relationship with his child that are available to him, his biological parental interest may be lost
424 entirely, or greatly diminished in constitutional significance by his failure to timely exercise it,
425 or by his failure to strictly comply with the available legal steps to substantiate it.
426 (c) A certain degree of finality is necessary in order to facilitate the state's compelling
427 interest. The Legislature finds that the interests of the state, the mother, the child, and the
428 adoptive parents described in this section outweigh the interest of an unmarried biological
429 father who does not timely grasp the opportunity to establish and demonstrate a relationship
430 with his child in accordance with the requirements of this chapter.

431 (d) An unmarried biological father has the primary responsibility to protect his rights.
432 (e) An unmarried biological father is presumed to know that the child may be adopted
433 without his consent unless he strictly complies with the provisions of this chapter, manifests a
434 prompt and full commitment to his parental responsibilities, and establishes paternity.
435 (4) The Legislature finds that an unmarried mother has a right of privacy with regard to
436 her pregnancy and adoption plan, and therefore has no legal obligation to disclose the identity
437 of an unmarried biological father prior to or during an adoption proceeding, and has no
438 obligation to volunteer information to the court with respect to the father.
439 Section 7. Section 78-30-4.13 is amended to read:
440 78-30-4.13. Notice of adoption proceedings.
441 (1) (a) An unmarried[,] biological father, by virtue of the fact that he has engaged in a
442 sexual relationship with a woman[,]:
443 (i) is considered to be on notice that a pregnancy and an adoption proceeding regarding
444 [that] the child may occur[,]; and
445 (ii) has a duty to protect his own rights and interests. [He is therefore]
446 (b) An unmarried biological father is entitled to actual notice of a birth or an adoption
447 proceeding with regard to [that] his child only as provided in this section.
448 (2) Notice of an adoption proceeding shall be served on each of the following persons:
449 (a) any person or agency whose consent or relinquishment is required under Section
450 78-30-4.14 , unless that right has been terminated by:
451 (i) waiver[,];
452 (ii) relinquishment[,];
453 (iii) consent[,]; or
454 (iv) judicial action;
455 (b) any person who has initiated a paternity proceeding and filed notice of that action
456 with the state registrar of vital statistics within the Department of Health, in accordance with
457 Subsection (3);
458 (c) any legally appointed custodian or guardian of the adoptee;
459 (d) the petitioner's spouse, if any, only if [he] the petitioner's spouse has not joined in
460 the petition;
461 (e) the adoptee's spouse, if any;

462 (f) any person who, prior to the time the mother executes her consent for adoption or
463 relinquishes the child [to a licensed child-placing agency] for adoption, is recorded on the birth
464 certificate as the child's father, with the knowledge and consent of the mother;
465 (g) any person who is:
466 (i) openly living in the same household with the child at the time the consent is
467 executed or relinquishment made[,]; and [who is]
468 (ii) holding himself out to be the child's father; and
469 (h) any person who is married to the child's mother at the time she executes her consent
470 to the adoption or relinquishes the child for adoption.
471 (3) (a) In order to preserve any right to notice and consent, an unmarried, biological
472 father may, consistent with Subsection (3)(d):
473 (i) initiate proceedings to establish paternity under Title 78, Chapter 45a, Uniform Act
474 on Paternity[,]; and
475 (ii) file a notice of the initiation of [those] the proceedings described in Subsection
476 (3)(a)(i) with the state registrar of vital statistics within the Department of Health [prior to the
477 mother's execution of consent or her relinquishment to an agency. That action and notice may
478 also be filed prior to the child's birth].
479 (b) If the unmarried, biological father does not know the county in which the birth
480 mother resides, he may initiate his action in any county, subject to a change in trial pursuant to
481 Section 78-13-7 .
482 (c) The Department of Health shall provide forms for the purpose of filing the notice
483 described in Subsection (3)(a)(ii), and make those forms available in the office of the county
484 health department in each county.
485 (d) The action and notice described in Subsection (3)(a):
486 (i) may be filed before or after the child's birth; and
487 (ii) shall be filed prior to the mother's:
488 (A) execution of consent to adoption of the child; or
489 (B) relinquishment of the child for adoption.
490 (4) Notice provided in accordance with this section need not disclose the name of the
491 mother of the child who is the subject of an adoption proceeding.
492 (5) The notice required by this section:

493 (a) may be served immediately after relinquishment or execution of consent[, but];
494 (b) shall be served at least 30 days prior to the final dispositional hearing[. The
495 notice]; and
496 (c) shall specifically state that the person served must respond to the petition within 30
497 days of service if he intends to intervene in or contest the adoption.
498 (6) (a) Any person who has been served with notice of an adoption proceeding and who
499 wishes to contest the adoption shall file a motion in the adoption proceeding:
500 (i) within 30 days after [service. The motion] the day on which the person was served
501 with notice of the adoption proceeding;
502 (ii) that shall set forth specific relief sought; and
503 (iii) that shall be accompanied by a memorandum specifying the factual and legal
504 grounds upon which the motion is based.
505 (b) Any person who fails to file a motion for relief within 30 days after [service of
506 notice] the day on which the person was served with notice of the adoption proceeding:
507 (i) waives any right to further notice in connection with the adoption[,];
508 (ii) forfeits all rights in relation to the adoptee[,]; and
509 (iii) is barred from thereafter bringing or maintaining any action to assert any interest in
510 the adoptee.
511 (7) Service of notice under this section shall be made as follows:
512 (a) (i) With regard to a person whose consent is necessary under Section 78-30-4.14 ,
513 service shall be in accordance with the provisions of the Utah Rules of Civil Procedure.
514 (ii) If service of a person described in Subsection (7)(a)(i) is by publication, the court
515 shall designate the content of the notice regarding the identity of the parties.
516 (iii) The notice described in this Subsection (7)(a) may not include the name of [the
517 person or persons] a person seeking to adopt the adoptee.
518 (b) [As] (i) Except as provided in Subsection (7)(b)(ii) to any other person for whom
519 notice is required under this section, service by certified mail, return receipt requested, is
520 sufficient.
521 (ii) If [that] the service described in Subsection (7)(b)(i) cannot be completed after two
522 attempts, the court may issue an order providing for service by publication, posting, or by any
523 other manner of service.

524 (c) Notice to a person who has initiated a paternity proceeding and filed notice of that
525 action with the state registrar of vital statistics in the Department of Health in accordance with
526 the requirements of Subsection (3), shall be served by certified mail, return receipt requested, at
527 the last address filed with the registrar.
528 (8) The notice required by this section may be waived in writing by the person entitled
529 to receive notice.
530 (9) Proof of service of notice on all persons for whom notice is required by this section
531 shall be filed with the court before the final dispositional hearing on the adoption.
532 (10) Notwithstanding any other provision of law, neither the notice of an adoption
533 proceeding nor any process in that proceeding is required to contain the name of the person or
534 persons seeking to adopt the adoptee.
535 (11) Except as to those persons whose consent to an adoption is required under Section
536 78-30-4.14 , the sole purpose of notice under this section is to enable the person served to:
537 (a) intervene in the adoption; and
538 (b) present evidence to the court relevant to the best interest of the child.
539 Section 8. Section 78-30-4.14 is amended to read:
540 78-30-4.14. Necessary consent to adoption or relinquishment for adoption.
541 (1) Either relinquishment of a child for adoption [to a licensed child-placing agency] or
542 consent to adoption of a child is required from:
543 (a) the adoptee, if he is more than 12 years of age, unless he does not have the mental
544 capacity to consent;
545 (b) both parents or the surviving parent of an adoptee who was conceived or born
546 within a marriage, unless the adoptee is 18 years of age or older;
547 (c) the mother of an adoptee born outside of marriage;
548 (d) any biological parent who has been adjudicated to be the child's biological father by
549 a court of competent jurisdiction prior to the mother's execution of consent to adoption or her
550 relinquishment [to an agency] of the child for adoption;
551 (e) any biological parent who has executed and filed a voluntary declaration of
552 paternity with the state registrar of vital statistics within the Department of Health in
553 accordance with Title 78, Chapter 45e, Voluntary Declaration of Paternity Act, prior to the
554 mother's execution of consent to adoption or her relinquishment [to an agency] of the child for

555 adoption, which voluntary declaration of paternity is considered filed when entered into a
556 database that can be accessed by the Department of Health;
557 (f) an unmarried[,] biological father of an adoptee, [as defined in Section 78-30-4.11 ,]
558 only if the requirements and conditions of Subsection (2)(a) or (b) have been proven; and
559 (g) the [licensed child-placing] person or agency to whom an adoptee has been
560 relinquished and that is placing the child for adoption.
561 (2) In accordance with Subsection (1), the consent of an unmarried, biological father is
562 necessary only if the father has strictly complied with the requirements of this section.
563 (a) (i) With regard to a child who is placed with adoptive parents more than six months
564 after birth, an unmarried[,] biological father shall have developed a substantial relationship
565 with the child, taken some measure of responsibility for the child and the child's future, and
566 demonstrated a full commitment to the responsibilities of parenthood by financial support of
567 the child, of a fair and reasonable sum and in accordance with the father's ability, when not
568 prevented from doing so by the person or authorized agency having lawful custody of the child,
569 and either:
570 (A) visiting the child at least monthly when physically and financially able to do so,
571 and when not prevented from doing so by the person or authorized agency having lawful
572 custody of the child; or
573 (B) regular communication with the child or with the person or agency having the care
574 or custody of the child, when physically and financially unable to visit the child, and when not
575 prevented from doing so by the person or authorized agency having lawful custody of the child.
576 (ii) The subjective intent of an unmarried[,] biological father, whether expressed or
577 otherwise, unsupported by evidence of acts specified in this Subsection (2) shall not preclude a
578 determination that the father failed to meet the requirements of Subsection (2)(a)(i).
579 (iii) An unmarried[,] biological father who openly lived with the child for a period of
580 six months within the one-year period after the birth of the child and immediately preceding
581 placement of the child with adoptive parents, and openly held himself out to be the father of the
582 child during that period, shall be considered to have developed a substantial relationship with
583 the child and to have otherwise met the requirements of Subsection (2)(a)(i).
584 (b) With regard to a child who is under six months of age at the time he is placed with
585 adoptive parents, an unmarried[,] biological father shall have manifested a full commitment to

586 his parental responsibilities by performing all of the acts described in this Subsection (2) prior
587 to the time the mother executes her consent for adoption or relinquishes the child [to a licensed
588 child-placing agency] for adoption. The father shall:
589 (i) initiate proceedings to establish paternity under Title 78, Chapter 45a, Uniform Act
590 on Paternity, and file with that court a sworn affidavit stating that he is fully able and willing to
591 have full custody of the child, setting forth his plans for care of the child, and agreeing to a
592 court order of child support and the payment of expenses incurred in connection with the
593 mother's pregnancy and the child's birth;
594 (ii) file notice of the commencement of paternity proceedings with the state registrar of
595 vital statistics within the Department of Health, in a confidential registry established by the
596 department for that purpose, which notice is considered filed when the notice is entered in the
597 registry of notices from unmarried biological fathers; and
598 (iii) if he had actual knowledge of the pregnancy, paid a fair and reasonable amount of
599 the expenses incurred in connection with the mother's pregnancy and the child's birth, in
600 accordance with his means, and when not prevented from doing so by the person or authorized
601 agency having lawful custody of the child.
602 (3) An unmarried[,] biological father whose consent is required under Subsection (1) or
603 (2) may nevertheless lose his right to consent if the court determines, in accordance with the
604 requirements and procedures of Title 78, Chapter 3a, Part 4, Termination of Parental Rights
605 Act, that his rights should be terminated, based on the petition of any interested party.
606 (4) If there is no showing that an unmarried[,] biological father has consented to or
607 waived his rights regarding a proposed adoption, the petitioner shall file with the court a
608 certificate from the state registrar of vital statistics within the Department of Health, stating
609 that a diligent search has been made of the registry of notices from unmarried biological fathers
610 described in Subsection (2)(b)(ii), and that no filing has been found pertaining to the father of
611 the child in question, or if a filing is found, stating the name of the putative father and the time
612 and date of filing. That certificate shall be filed with the court prior to entrance of a final
613 decree of adoption.
614 (5) An unmarried[,] biological father who does not fully and strictly comply with each
615 of the conditions provided in this section, is [deemed] considered to have waived and
616 surrendered any right in relation to the child, including the right to notice of any judicial

617 proceeding in connection with the adoption of the child, and his consent to the adoption of the
618 child is not required.
619 Section 9. Section 78-30-4.16 is amended to read:
620 78-30-4.16. Contested adoptions -- Rights of parties -- Determination of custody.
621 (1) If a person whose consent for an adoption is required pursuant to Subsection
622 78-30-4.14 (1)(b), (c), (d), (e), or (f) refused to consent, the court shall determine whether
623 proper grounds exist for the termination of that person's rights pursuant to the provisions of this
624 chapter or Title 78, Chapter 3a, Part 4, Termination of Parental Rights Act.
625 (2) (a) If there are proper grounds to terminate the person's parental rights, the court
626 shall order that the person's rights be terminated.
627 (b) If there are not proper grounds to terminate the person's parental rights, the court
628 shall:
629 [(a)] (i) dismiss the adoption petition; [and]
630 [(b)] (ii) conduct an evidentiary hearing to determine who should have custody of the
631 child; and
632 (iii) award custody of the child in accordance with the child's best interest.
633 (3) Evidence considered at the custody hearing may include:
634 (a) evidence of psychological or emotional bonds that the child has formed with a third
635 person, including the prospective adoptive parent[,]; and
636 (b) any detriment that a change in custody may cause the child.
637 (4) The fact that a person relinquished a child [to a licensed child-placing agency] for
638 adoption or consented to the adoption may not be considered as evidence that it is not in the
639 child's best interest for custody to be awarded to such person or that:
640 (a) the person is unfit or incompetent to be a parent;
641 (b) the person has neglected or abandoned the child; or
642 (c) the person is not interested in having custody of the child.
643 (5) Any custody order entered pursuant to this section may also:
644 (a) include provisions for:
645 (i) parent-time by a biological parent; or
646 (ii) visitation by an interested third party[,]; and
647 (b) provide for the financial support of the child.

648 (6) (a) If a person or entity whose consent is required for an adoption under Subsection
649 78-30-4.14 (1)(a) or (g) refuses to consent, the court shall proceed with an evidentiary hearing
650 and award custody as set forth in Subsection (2).
651 (b) The court may also finalize the adoption if doing so is in the best interest of the
652 child.
653 (7) An adoption may not be contested after the final decree of adoption is entered.
654 Section 10. Section 78-30-4.21 is amended to read:
655 78-30-4.21. Power of a minor to consent or relinquish.
656 (1) A minor parent has the power to:
657 (a) consent to the adoption of [his or her] the minor's child; and [has the power to]
658 (b) relinquish [his or her] the minor's control or custody of the child [to a licensed
659 child-placing agency. That] for adoption.
660 (2) The consent or relinquishment described in Subsection (1) is valid and has the same
661 force and effect as a consent or relinquishment executed by an adult parent.
662 (3) A minor parent, having executed a consent or relinquishment, cannot revoke that
663 consent upon reaching the age of majority or otherwise becoming emancipated.
664 Section 11. Repealer.
665 This bill repeals:
666 Section 78-30-4.11, Definition.




Legislative Review Note
as of 2-1-05 11:51 AM

Based on a limited legal review, this legislation has not been determined to have a high
probability of being held unconstitutional.

Office of Legislative Research and General Counsel